FOIA For Firms?

Lay people do not always appreciate the state action doctrine. We lawyers are quick to point out that the Bill of Rights, at least, is not there to limit the conduct of private parties. This feels like gospel. Marsh v. Alabama has little by way of progeny, whereas United States v. Miller has proven rather feracious. Even those who are generally sympathetic to the claim that “code is law” tend to balk at Lawrence Lessig’s corollary that we subject the activities of Internet companies to First Amendment scrutiny.

It may not feel right applying public constraints to private entities, but the reverse is not true: we are plenty comfortable bringing market forces to bear on perceived government shortcomings. Outsourcing government functions to for-profit organizations—privatization—is commonplace. Many efforts to reform government search for analogs for profit and seek to foster forms of competition to increase efficiency.

Will this dynamic continue? A new bill in California would permit consumers to file a request to see what data the entity holds about them, expanding on an existing law that requires companies to name the entities with whom they share personal data. Commentators have drawn links between the new proposal and European law, but what I find interesting is the similarity to the Freedom of Information Act (FOIA)—the law that keeps citizens apprised of government activities of concern to them. Today consumers see at most what companies reveal in their privacy policies. Imagine if, consistent with trade secrets and personal privacy, consumers had a right to make specific requests of corporations, which they had to answer in a timely manner or get sued.

Or take another example: human subject research. Say what you will about Institutional Review Boards, they usually mean business. An academic researcher who would conduct experiments involving people—often in order to help those people, and at least to helps others and further collective knowledge—has to comply with the robust principles of the Belmont Report. Whereas a company interested in treating its consumers like guinea pigs for the express purpose of benefiting itself at their expense (say, by figuring out exactly how long ads before movies can be, or charging more for the same product), faces at most a set of watered down fair information practice principles. (April 23, 2013 update: I just came across a similar point on page 148 of Evgeny Morozov’s To Save Everything, Click Here.)

Now obviously there are reasons why we do not permit consumers to FOIA companies and why companies can do market research without IRB approval. Just as there are reasons not to apply the First Amendment to Facebook despite its digital ubiquity and “tight leash.” The government is different in that it works for “the People” and has a monopoly on coercion. But it strikes me as interesting that our reflexive intuition—or at least mine—is that public institutions can benefit from the forces and techniques that constrain private ones, but not the other away around.